2. Definitions.
2 a. Software Products means the object code version of the computer software products identified on Licensee's purchase order, in obtaining an unlocking code, or otherwise between Licensor and Licensee, plus any portions of source code and internal design furnished to Licensee by Licensor, plus pertinent Updates, and Enhancements. This license form does not apply to any software products designated as confidential or proprietary by Licensor, or by the owner of the products if other than Licensor.
2 b. Documentation means the standard user manual, training materials, and courseware supplied or approved by Licensor which tell how to install and use the Software Products. (Software design documentation, where furnished by Licensor such as to accompany source code, whether textual, graphical, or description language, is considered part of the Software Product, not Documentation.)
2 c. Updates means changes which affect the operating performance or efficiency of a Software Product or its Documentation, but which do not alter the basic functions that it performs.
2 d. Enhancements means changes which render a Software Product capable of performing basic functions additional to those present when the Software Product was originally supplied to Licensee under this Agreement.
2 e. Designated Equipment means the computer or workstation and associated peripheral equipment, as identified by serial number, system signature, or equivalent, on Licensee's purchase order, in obtaining an unlocking code, or otherwise between Licensor and Licensee.
2 f. Installation Date means the date on which the Software Products are installed on the Designated Equipment, or the date on which the Licensor can demonstrate that such Products properly respond to their standard test data if later.
2 g. Release means a version of a Software Product, including Updates and Enhancements, specifically so identified by Licensor and issued for general use.
3. License Granted. Licensor grants to Licensee a non-exclusive license to use the Software Products on the Designated Equipment, without right to alter such Products, or to transfer or sublicense anything under this Agreement except as provided under Paragraph 16 "Assignment". Licensee shall not attempt to disassemble the Software Products, or to create or derive source code from them, whether by reverse engineering or otherwise.
4. Duration. The license shall continue until ended in accordance with Paragraph 15 "End of License Period".
5. Fee. Licensee shall pay Licensor a single fee for the license granted, as stated on Licensee's purchase order or otherwise agreed; and if obtaining maintenance shall pay the fee provided under Paragraph 11 "Maintenance". Payment is due within 30 days of the invoice date, unless otherwise agreed in writing, and any payment not received when due may be surcharged 1.5% per month for lateness until received, up to any maximum set by applicable law. If maintenance fees are late, Licensor may upon notice suspend maintenance partly or entirely, in addition to any lateness charge, and without liability to Licensee or other persons.
6. Delivery and Installation. Licensor shall deliver the Software Products and Documentation to Licensee, and install the Software Products on Designated Equipment, as stated on Licensee's purchase order or otherwise agreed. (E.g. purchase order shall set forth any delivery or installation requirements and associated fees.)
7. Licensee's Purchase Order Terms. Licensee's purchase order shall identify Licensor's Software Products, Designated Equipment, fee, delivery and installation requirements, and shall incorporate by reference the terms of this Agreement. Licensee's purchase order shall not bind Licensor until expressly accepted by Licensor. The terms of Licensee's purchase order shall be subject to the terms of this License Agreement, which shall govern in any apparent conflict. United States Government Licensees may additionally cite any Federal Acquisition Regulation ("FAR") applicable to software developed entirely at private expense, and may request that those FARs govern in any conflict between them and this License Agreement.
8. Ownership. No ownership is transferred under this Agreement, nor any right not expressly granted.
9. Right to Copy. Licensee shall make no more than three copies of the Software Products on backup media for archival purposes, plus any copies within the Designated Equipment (e.g. on hard disks or within Designated Equipment's processor memory) reasonably needed for operation. Documentation may be reproduced only to provide working copies for operating the Designated Equipment. All copies are subject to this Agreement, and Licensee shall have no right in them other than the rights expressly granted in this Agreement. All copies shall include notices of trademark, copyright, patent, and confidentiality, in the manner appearing on the materials copied, both in the software and on all tangible media such as tapes, disks, diskettes, optical devices, removable solid-state memory, and Documentation.
10. Warranty. Licensor warrants that each Release of a Software Product will perform as specified in its Documentation. The Products are of such complexity that they may have inherent defects. If any Product fails to perform as warranted, then as Licensee's sole remedy, Licensor shall promptly provide all reasonable programming services to correct documented errors at Licensor's expense, and if repeated efforts fail, Licensee shall be entitled to its actual damages subject to Paragraph 13 "Limited Liability".
10 a. Warranty Period. This warranty shall be effective on and after the Installation Date of a Release for a period of 90 days unless a different period is agreed in writing. No claims under warranty will be accepted after such period ends.
10 b. Conditions Voiding Warranty. This warranty shall be void if Licensee modifies the Software Products or if they are installed other than on the Designated Equipment, and shall not apply to any defect in media (as to which Licensor shall be obliged only for replacement at Licensor's expense) or negligence of Licensee or its suppliers.
10 c. LIMITATION OF WARRANTY. THE FOREGOING WARRANTY IS THE ONLY WARRANTY MADE BY LICENSOR (EXCEPT FOR THE WARRANTIES IN PARAGRAPH 20). ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED BY ALL PARTIES NOTWITHSTANDING ANY APPLICABLE LAW.
11. Maintenance. Licensor's maintenance of the Software Products shall consist of furnishing support customary in the industry, by telephone, facsimile, or other reasonable means in Licensor's discretion, supplying any Updates issued, and correcting any defects in the operation of the Software Products (whether by Release or otherwise).
11 a. Maintenance may be had at such fees as Licensor may detail by quotation on request, by published schedule from time to time, or by written agreement. If an Update is issued while License's maintenance fee is not current, Licensee may have the Update upon paying to Licensor the sum necessary to bring maintenance current, or as agreed in writing.
11 b. Maintenance of a Software Product will be at Licensor's expense during that Product's warranty period. Maintenance is not warranted except for Releases, which are warranted for the 90-day period after the Installation Date of the Release. In no event shall Licensee be entitled to recover more than one year's maintenance fee (Paragraph 13). Any defects resulting from Licensee's modification of the Software Products, or of the Designated Equipment without Licensor's approval, or resulting from failure to comply with this Agreement, shall be corrected only at Licensee's expense whether or not during the warranty or any maintenance period.
11 c. Enhancements may be had on such terms as are offered upon issue. Updates and Enhancements, whether by Release or otherwise, shall be distributed as Licensor may find reasonable, such as by electronic transmission (at Licensee's expense for the connection), or by surface or air transport of distribution media (tape, diskette, etc.) upon return to Licensor of previously issued (or equivalent) distribution media.
12. Training. Training to be provided shall be as stated on Licensee's purchase order or otherwise agreed.
13. LIMITED LIABILITY. NO CLAIM ARISING FROM THIS AGREEMENT MAY BE MADE BY OR THROUGH LICENSEE MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION UPON THE CLAIM HAS ACCRUED. IN NO EVENT SHALL LIABILITY OF OR THROUGH LICENSOR EXCEED THE SUM PAID TO LICENSOR FOR THE PARTICULAR PRODUCT OR SERVICE IN THE SPECIFIC INSTANCE WHICH CAUSED INJURY. THESE LIMITS SHALL APPLY TO ANY SUCH CLAIM, WHETHER IN CONTRACT OR TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, AND SHALL INCLUDE COSTS AND FEES OF ARBITERS, ATTORNEYS, EXPERT WITNESSES, AND ACCOUNTANTS. IN NO EVENT SHALL LIABILITY BE ASSIGNED TO OR THROUGH LICENSOR FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS) TO LICENSEE OR ANY OTHER PERSON, OR FOR ANY DAMAGES OTHER THAN AS SET FORTH IN THIS PARAGRAPH, REGARDLESS OF WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF ANY APPLICABLE LAW; AND THIS PARAGRAPH SHALL CONSTITUTE A COMPLETE DEFENSE TO ANY CLAIMS OTHER THAN AS IT SETS FORTH. THE COMPLEXITY OF THE SOFTWARE PRODUCTS AND THEIR CONCEIVABLE USES, AND UNFORSEEABILITY OF EVENTS THAT MAY IN SOME WAY RESULT THEREFROM, MAKE ANY OTHER PROVISION FOR LIABILITY IMPRACTICAL AND UNJUST.
14. Default. Upon or at any time after any breach of this Agreement by Licensee, Licensor may notify Licensee of the breach in writing and demand cure. If no cure is effected within 30 days or as Licensor may otherwise agree in writing, Licensor may upon written notice to Licensee declare Licensee in default and end the License Period, with no liability for damages.
15. End of License Period. The license period may be ended by Licensor as provided under Paragraph 14, or by Licensee on written notice to Licensor at any time. Thereupon Licensee shall immediately expunge all copies of Software Products within Designated Equipment (e.g. on hard disk or in processor memory), return to Licensor, or with Licensor's consent destroy, all media copies of Software Products and all copies of Documentation, certify in writing that such return or destruction and expungement are complete, and cease all use. The parties shall promptly notify each other in writing of all outstanding claims (e.g. for accrued fees), which unless otherwise stated by the creditor shall be due and payable immediately. The provisions of Paragraphs 10, 13, and 20 shall survive.
16. Assignment. Licensor, upon assigning this Agreement, shall give written notice to Licensee. Licensee may not assign or sublicense this Agreement or any part without prior express written approval by Licensor, which shall not be unreasonably withheld.
17. Taxes. Licensee shall pay any sales, use, value, property, or other taxes, customs, or other assessments by any governmental authority arising from this Agreement or the possession or use of the Software Products, except any assessments on or measured by Licensor's income.
18. Notice. All notices and communications under this Agreement, to the extent no particular time, form, or detail is specified, shall be so given as to allow the recipient adequate opportunity to perform such investigation or action as would be required of a reasonably prudent person in the circumstances. Oral and electronic communications may be given if reasonable under this criterion, if no writing is otherwise required, and if confirmed by written memorandum in reasonable detail within 2 business days; communications not within the United States shall be sent by facsimile, with original documents for confirmation following by first-class air mail, unless otherwise agreed. All communications shall be effective upon receipt, or 7 days after deposit in the U.S. mail, first-class postage prepaid, whichever is sooner, and shall be sent to the parties at their addresses above or in Software Product unlock code records, or as otherwise notified.
19. Export Control Restrictions. Licensee shall not use Software Products, or otherwise act under this Agreement, in violation of United States Export Administration Regulation 779.4(f), or comparable U.S. or other law as it applies. Licensor is advised that further information may be obtained by telephoning the U.S. Department of Commerce, Bureau of Export Administration, Western Regional Office, (714)660-0144.
20. Entire Agreement, Governing Law, Modifications, Fees. This document constitutes the entire agreement of the parties upon its topics, superseding all previous written communications, and can be modified only in writing. No representations have been relied on other than as expressly stated herein. No omission by a party to enforce any right under this Agreement shall be deemed a waiver or a continuing waiver. This Agreement shall be governed by the law of the location of Licensor's principal place of business above; however, if that law would apply the law of another jurisdiction, such other jurisdiction's law shall nonetheless not be applied; and excluding to the extent applicable the Uniform Commercial Code and the United Nations Convention on the International Sale of Goods. Each party warrants that it has full authority to make this Agreement and perform everything required from that party, and each party and signatory warrants that the person executing this document for that party is fully authorized to do so. In any dispute related to this Agreement, the prevailing party shall be entitled to its costs, including court costs and reasonable fees of attorneys, arbiters, accountants, and expert witnesses, in addition to any other remedy.
21. Captions, Construction, Severability. Captions in this document are for convenience only and shall not be deemed to have any other effect. The dates of execution shown below are for convenience only. In the language of this Agreement, the singular and plural numbers, and each gender, shall be deemed to include all others, and "person" shall be deemed to include natural persons, corporations, and every other entity, wherever the context may require; "shall" is mandatory, "may" is permissive. If any part of this Agreement is ultimately held unenforceable by a court or other body of competent jurisdiction, the remainder shall nevertheless be deemed of full force.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.
LICENSOR
By ____________________________ ________
(Signature) (Date)
____________________________
(Name Printed)
Its ____________________________
(Title)
LICENSEE
By ____________________________ ________
(Signature) (Date)
____________________________
(Name Printed)
Its ____________________________
(Title)
Software License Agreement (non-confidential)
29 Jul 92
Copyright © 1996, Mark V Systems, Encino CA,
Most recent update 12 December 1996